IN THE MATTER OF THE DRIVER'S LICENSE SUSPENSION OF GEORGE JAY BEYER, JR.
STATE OF IDAHO, TRANSPORTATION DEPARTMENT, Respondent. GEORGE JAY BEYER, JR., Petitioner-Appellant,
2013 Opinion No. 32
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie, District Judge.
Decision of the district court, affirming an administrative order suspending a driver's license for failing breath alcohol concentration test, affirmed.
Clark & Feeney, Lewiston, for appellant. Charles M. Stroschein argued.
Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special Deputy Attorney General, Lewiston, for respondent. Edwin L. Litteneker argued.
George Jay Beyer, Jr. appeals from the district court's decision upon judicial review affirming the Idaho Transportation Department's order suspending Beyer's driver's license after he failed a breath alcohol concentration test. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
Beyer was stopped in November 2010 for making an illegal right turn while driving a vehicle. I.C. § 49-644(1). The officer who stopped Beyer noticed a smell of alcohol coming from the vehicle and that Beyer's eyes were glassy and bloodshot. Beyer admitted to consuming alcohol prior to driving and the officer conducted standard field sobriety tests. After observing Beyer's performance, the officer arrested Beyer for driving under the influence. A breath test showed that Beyer's breath alcohol concentration was above the legal limit. Beyer was served with a notice of administrative suspension of his driver's license due to his failure of the breath test. Following his arrest, Beyer requested a hearing before a hearing officer from the Idaho Transportation Department (ITD) to contest the license suspension. At the hearing, Beyer argued that his driver's license should not be suspended. The hearing officer sustained the suspension of Beyer's license. Beyer appealed to the district court. The district court affirmed the hearing officer's decision. Beyer again appeals.
STANDARD OF REVIEW
The Administrative License Suspension statute, I.C. § 18-8002A, requires that the ITD suspend the driver's license of a driver who has failed a blood alcohol concentration test administered by a law enforcement officer. A person who has been notified of such an administrative license suspension (ALS) may request a hearing before a hearing officer designated by the ITD to contest the suspension. I.C. § 18-8002A(7). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds, enumerated in I.C. § 18-8002A(7)(a)-(e), for vacating the suspension. The burden of proof rests upon the driver to prove any of the grounds to vacate the suspension. I.C. § 18-8002A(7); Kane v. State, Dep't of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct. App. 2003). Once the driver has made an initial prima facie showing of evidence proving some basis for vacating the suspension, the burden shifts to the state to rebut the evidence presented by the driver. See Kane, 139 Idaho at 590, 83 P.3d at 134.
A license suspension may be vacated if "the peace officer did not have legal cause to stop the person." I.C. § 18-8002A(7)(a). A license suspension may also be vacated if the tests for alcohol concentration "administered at the direction of the peace officer were not conducted in accordance with the requirements" of I.C. § 18-8004(4). I.C. § 18-8002A(7)(d). Pursuant to I.C. § 18-8004(4), the Idaho State Police (ISP) is charged with promulgating standards for administering tests for breath alcohol content. State v. DeFranco, 143 Idaho 335, 337, 144 P.3d 40, 42 (Ct. App. 2006). To carry out the authority conferred by that statute, the ISP issued operating manuals as well as Standard Operating Procedure (SOP) establishing procedures for the maintenance and operation of breath testing equipment.In re Mahurin, 140 Idaho 656, 658, 99 P.3d 125, 127 (Ct. App. 2004). Noncompliance with these procedures is a ground for vacating an ALS under I.C. § 18-8002A(7)(d). Mahurin, 140 Idaho at 658-59, 99 P.3d at 127-28. The ISP SOP for breath alcohol testing provide that, "prior to evidentiary breath alcohol testing, the subject/individual should be monitored for at least fifteen (15) minutes . . . . During the monitoring period the subject/individual ...